got pulled over hours after drinking for a tag light out. police officer told me i had to take a breathalizer test because he smelled alcohol coming from the car. after taking the test he had me do the feild tests. he do this just off of smell?
Probable cause can be created in any fact that permits the Officer to have reasonable and articulalble suspicion to make an arrest. So, smelling alcohol on your breath after stopping you in a vehicle where you were driving is sufficient to inquire further and even make an arrest if necessary. Even if you said nothing and consented to no tests or searches, it would be enough for an arrest. Maybe not for a conviction, but enough for an arrest.
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Probable cause is requires for a stopping police officer to continue his/her field investigation and it can be triggered by a mere smell. Although you have a legal right to refuse a breathalyzer, yet, he/she has a legal right to request it once he/she determines a probable cause for such elevated scrutiny.
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In Delaware, the police must have probable cause to believe that you are under the influence of alcohol before administering the breath test. The odor of alcohol, standing alone, is insufficient probable cause since it is legal to drink alcohol, then drive, if you are not under the influence. The probable cause to support a breath test is usually supplied by additional factors, such as slurred speech, blood shot or glassy eyes, unstable coordination outside the car, failed sobriety field test results or failed preliminary breath test. it sounds like you are talking about the preliminary breath test that was administered at the scene. often, the results of the pbt are not admissible at trial because of calibration issues. also, it should not be administered within 15 minutes of the stop according to maufacturer standard operation procedures. You are never under a legal duty to take the preliminary breath test and if you refuse you cannot be forced to take it.
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